Towards a principled doctrine of the margin of appreciation in international human rights law
When human rights cases are tried before an international court, judges must consider whether to follow a particular state's approach to the interpretation and application of its international human rights law obligations or to adopt their own approach. In this way, the international court is m...
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| Format: | Thesis |
| Language: | English |
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2007
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| _version_ | 1826303959688544256 |
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| author | Legg, A |
| author2 | Finnis, J |
| author_facet | Finnis, J Legg, A |
| author_sort | Legg, A |
| collection | OXFORD |
| description | When human rights cases are tried before an international court, judges must consider whether to follow a particular state's approach to the interpretation and application of its international human rights law obligations or to adopt their own approach. In this way, the international court is marking the limit of a state's freedom or sovereignty in the sphere of human rights. The margin of appreciation, a doctrine of judicial deference, significantly influences a court's approach to this adjudication. The doctrine has been criticised for causing relativism about human rights and the abdication of the judicial protection of human rights and its abandonment recommended. The thesis responds to such criticisms in three parts. Part One argues that the margin of appreciation does not lead to ethical relativism about human rights, arguing instead that universality is compatible with some kinds of differentiation. Part Two analyses the margin of appreciation by drawing on a study of the ethics of deference that finds reasons for deference in the value placed by the court on the state's involvement in determining its human rights law obligations. Part Two also argues that international institutions should value the state's involvement. Part Three presents factors for judicial consideration that both strengthen and curtail reasons for deference. The thesis thus defends the margin of appreciation as a doctrine beneficial to the international protection of human rights. The thesis goes further by offering an analytical approach to the doctrine that can lead to its principled application, namely that the court should weigh intrinsic reasons for deference transparently along with other relevant factors. This approach safeguards the role of international courts and at the same time recognises the essential part played by states in the protection of human rights. |
| first_indexed | 2024-03-07T06:10:36Z |
| format | Thesis |
| id | oxford-uuid:ef59ed62-53fd-4de0-b869-e2e858150c40 |
| institution | University of Oxford |
| language | English |
| last_indexed | 2024-03-07T06:10:36Z |
| publishDate | 2007 |
| record_format | dspace |
| spelling | oxford-uuid:ef59ed62-53fd-4de0-b869-e2e858150c402022-03-27T11:39:36ZTowards a principled doctrine of the margin of appreciation in international human rights lawThesishttp://purl.org/coar/resource_type/c_bdccuuid:ef59ed62-53fd-4de0-b869-e2e858150c40Human rightsSocial SciencesLawPublic international lawLegal philosophyEnglishOxford University Research Archive - Valet2007Legg, AFinnis, JSarooshi, DWhen human rights cases are tried before an international court, judges must consider whether to follow a particular state's approach to the interpretation and application of its international human rights law obligations or to adopt their own approach. In this way, the international court is marking the limit of a state's freedom or sovereignty in the sphere of human rights. The margin of appreciation, a doctrine of judicial deference, significantly influences a court's approach to this adjudication. The doctrine has been criticised for causing relativism about human rights and the abdication of the judicial protection of human rights and its abandonment recommended. The thesis responds to such criticisms in three parts. Part One argues that the margin of appreciation does not lead to ethical relativism about human rights, arguing instead that universality is compatible with some kinds of differentiation. Part Two analyses the margin of appreciation by drawing on a study of the ethics of deference that finds reasons for deference in the value placed by the court on the state's involvement in determining its human rights law obligations. Part Two also argues that international institutions should value the state's involvement. Part Three presents factors for judicial consideration that both strengthen and curtail reasons for deference. The thesis thus defends the margin of appreciation as a doctrine beneficial to the international protection of human rights. The thesis goes further by offering an analytical approach to the doctrine that can lead to its principled application, namely that the court should weigh intrinsic reasons for deference transparently along with other relevant factors. This approach safeguards the role of international courts and at the same time recognises the essential part played by states in the protection of human rights. |
| spellingShingle | Human rights Social Sciences Law Public international law Legal philosophy Legg, A Towards a principled doctrine of the margin of appreciation in international human rights law |
| title | Towards a principled doctrine of the margin of appreciation in international human rights law |
| title_full | Towards a principled doctrine of the margin of appreciation in international human rights law |
| title_fullStr | Towards a principled doctrine of the margin of appreciation in international human rights law |
| title_full_unstemmed | Towards a principled doctrine of the margin of appreciation in international human rights law |
| title_short | Towards a principled doctrine of the margin of appreciation in international human rights law |
| title_sort | towards a principled doctrine of the margin of appreciation in international human rights law |
| topic | Human rights Social Sciences Law Public international law Legal philosophy |
| work_keys_str_mv | AT legga towardsaprincipleddoctrineofthemarginofappreciationininternationalhumanrightslaw |